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Zambrano: Unwritten?

National courts have continued to deal with the consequences of Zambrano. Although Dereciand MacCarthy clarified that compulsion to leave related solely to practical consequences, the scope of ‘practical consequences’ was not determined by the CJEU. While the rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave, would the removal of the rights to welfare engage the Zambrano right?

This question was discussed in a previous post on the ‘Zambrano Amendments’[1] introduced in 2012 at the same time as changes were made to the EEA Regulations 2006 implementing Citizenship Directive 2004/38 to give effect to the Zambrano decision.[2] These ‘Zambrano Amendments’ banned Zambrano carers from all mainstream benefits under national law – employed and unemployed Zambrano carers were henceforth excluded from eligibility for social security benefits, child tax credits and housing entitlements. In HC and Sanneh, it was decided that this blanket refusal of welfare benefits was legal – it did not compel a Zambrano carer to leave the EU. The substance of the Zambrano right to reside remained intact even if the Zambrano carer was left destitute and without adequate resources to care for the EU citizen child.

LJ Elias introduced in Harrison[3] what has become the standard dicta for understanding the Zambrano principle. Dismissing a broad approach to the CJEU ruling, he stated:

‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights).’

The Zambrano principle is thus limited to situations where the EU citizen is irrefutably in practice forced to leave the EU. The CJEU has not yet had an opportunity to comment on this approach and it has continued to be applied, most recently in Hines v London Borough of Lambeth[4] where the removal of one parent was found compatible with the Zambrano principle. Surprisingly, it was not applied in R (Osawemwenze) v SS Home Department[5] where both parents were told to relocate with two small children who may have been EU citizens. These cases continue the theme raised in my last post on the compatibility of rights under EU and ECHR law, in particular the rights of the child. The cases also provide further insight into the national judicial response to the Zambrano ruling.

Maureen Hines, a Jamaican citizen without permission to remain in the UK, was refused housing assistance despite being mother to a 5-year old boy, Brandon, who was born in the UK and thus an EU national. The reviewer for Lambeth decided that even if the refusal caused Hines to leave the UK, Brandon’s father, who had an EU right to permanent residence in the UK, could look after him: although his parents had separated, Brandon did spend two days and nights a week with his father.

Mr Osawemwenze, a Nigerian citizen resident in the UK for 15 years, was three times refused leave to remain here. As father to 3 children, the eldest (Fred – 15 years old) having temporary leave to remain in his own right, he argued interference with his right to private and family life under Article 8 ECHR. He also had two children aged 4 and 1: surprisingly the judgment neglects to mention of the nationality of these children save to say that they are ‘entitled to Nigerian citizenship’ [27]. Does this oblique reference suggest that they are British nationals? If so the case raises the serious question of why the Zambrano principle was not discussed, as under the Harrison test their right of residence would be ‘seriously impaired’ by the exclusion of both non-EU national parents.

Despite not being a ground of claim advanced at the hearing, it may be that this omission of EU law gives rise to state liability as per Koebler. This omission might be ‘sufficiently serious’ as Judge Thomas ultimately agreed with the Home Secretary that it was reasonable to expect Mr Osawemwenze and his entire family to resettle in Nigeria. The decision rested upon a brief consideration of the impact of relocation on the children. In the absence of a suggestion that ‘the two youngest children could not relocate to Nigeria’ [24] and having concluded that Fred would have ‘some awareness of Nigerian culture’ [27] HHJ Thomas decided that Mr Osawemwenze and his wife retained adequate ‘social, cultural and family ties’ with Nigeria to ‘provide stability to the children of the family and help them integrate into Nigerian society’ [35]. There was therefore no disproportionate interference with Article 8 ECHR rights. Given the resounding silence on the implications of EU rights of the youngest children, this decision may yet be appealed.

Hines did appeal Lambeth’s decision, albeit unsuccessfully, before HHJ Mitchell in June 2013. However, LJ Arden gave permission for appeal against HHJ Mitchell’s decision in order for two specific questions – the first of which could also apply to Osawemwenze – to be answered: 1) Whether the judge should have applied a higher level of review given the engagement of Article 20 TFEU and 2) whether the judge used the correct test when considering whether the removal of the mother jeopardized the continued residence of Brandon in the EU – should he have considered the Charter based ‘best interests’ of the child instead of the statutory test of practicality laid out in Regulation 15A (4A) (c) of the Immigration Regulations.

The argument for Hines was that as Regulation 15A (4A)(C) was introduced to implement EU law (the Zambrano principle), Lambeth’s decision – as per Article 51 CFR – had to take into consideration EU human rights law, in particular Articles 7 (respect for private and family life) and 24 (rights of the child) of the EU Charter of Fundamental Rights. The correct question was therefore not the statutory practicality test but the best interests test that considered the fundamental rights of the child to have regular contact with her parents and enjoy family life.

In a short judgment delivered in May 2014, which included a refusal to refer a question to the CJEU, LJ Vos negated both questions. First, the relevance of Article 20 TFEU did not affect the intensity of the review – the correct standard had been applied. Secondly, the engagement of Article 20 TFEU via Regulation 15A (4A)(C) did not call for a different test to be applied. He ruled that

25…the reviewer and the judge applied the right test. The reviewer was not obliged to consider Brandon’s interests as paramount, though his interests were indeed to be taken into account as in fact happened. The law is clear from Zambrano and Dereci as applied in Harrison and there is therefore no need for the point to be referred to the CJEU for a preliminary ruling as suggested by the appellant.

According to Harrison, Hines would only be entitled to housing assistance if Brandon were compelled to depart the United Kingdom if she had to leave. As Brandon’s father was deemed to be ‘responsible and caring’ [29], this would not be so – the boy could go to live with him. Thus the substance of Brandon’s EU right to residence was not impaired: he could in theory be cared for by his father, even if in practice this was not in his best interests due to his father’s 12-hour shifts at work (his father was subsequently made redundant – putting his ability to provide for Brandon in question).

LJ Vos agreed that the removal of a parent carer would normally be against the best interests of the child and therefore clearly contrary to Article 24(3) CFR. However, he stated that the Harrison test meant that Brandon’s welfare ‘cannot be the paramount consideration because that would be flatly inconsistent with the statutory test’ [22] of whether he would be unable to reside in the UK if his mother left.

Hines, Harrison, HC and Sanneh illustrate that according to the British interpretation, quality of life is irrelevant to the Zambrano principle. It is questionable whether Dereci went this far in focusing on ‘practical consequences’ – would the CJEU condone a life of want and poverty for EU citizens? It must therefore be asked whether the new Article 15A(4A)(c) and the Harrison test is compatible with EU law – it seems that Zambrano is being unwritten in interpretation by the national authorities.

It would have been helpful if this case were referred to the CJEU in order for the correctness of this approach to be confirmed. LJ Vos, however, saw no need to do so as he was convinced of the answer –

I have no doubt that the test applicable under regulation 15A(4A)(c) is clear and can be given effect without contravening EU law. The reviewer has to consider the welfare of the British citizen child and the extent to which the quality or standard of his life will be impaired if the non-EU citizen is required to leave. This is all for the purpose of answering the question whether the child would, as a matter of practicality, be unable to remain in the UK. This requires a consideration, amongst other things, of the impact which the removal of the primary carer would have on the child, and the alternative care available for the child.

He suggested that consideration of alternative care arrangements indicated that Brandon’s best interests were to an extent taken into account. These were discussed at length but the case shied away from laying down any guidelines other than to exclude adoption or foster care as adequate alternatives – it was fortunately accepted that the

‘24…quality of the life of the child would be so seriously impaired by his removal from his mother to be placed in foster care that he would be effectively compelled to leave.’

Although limited, this acts as a form of negative guidance in setting the outer limits of what constitutes compulsion to leave. It suggests that fundamental rights operate only at the outskirts of the Zambrano principle. Is this adequate and in line with EU treaty law, the Charter and/ or the ECHR? There may also be no clear answer to this question until the CJEU is able to rule on the British interpretation of the Zambrano principle.

It may be a while before a case is referred from the UK – the silence on the citizenship of the younger Osawemwenze children and the absence of any discussion of the Zambrano principle in that case together with the explicit refusal to refer in Hines suggests an underlying judicial hostility to the citizenship rights protected in EU law. Until the CJEU speaks, attention must be paid to ensure that this cynical interpretation of the Zambrano principle is not expanded – the Harrison test must apply to the right to reside of Zambrano carers only and not the Article 20 TFEU right to reside in general.

[2]Regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006/1003 was inserted with effect from 8th November 2012 by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012/2560 to transpose the Zambrano principle and provide a derivative right of residence for primary carers of British citizens.